Gold Bear wars reloaded....

For fans of the
various Gold Bunny trade mark disputes, this Kat can report on a similarly
addictive dispute relating to Gold Bears of the foiled and gummy bear varieties.

Upholding a claim
brought by confectionery manufacturer Haribo, the Regional Court of Cologne in
December 2012 (Regional Court of Cologne (Landgericht Köln), 33O 803/11)
decided that sweet maker Lindt's three-dimensional gold-foiled chocolate bears
amounted to an infringing ‘visual representation’ of Haribo's well-known
GOLDBÄREN (in English Gold Bear) gummy bear word marks.While the court had
acknowledged that Lindt did not use the word sign GOLDBÄREN , it held that the
sight of the shape of Lindt's three-dimensional chocolate bears inevitably
produced connotations with Haribo's bears, which could result in a dilution of
Haribo's trade mark rights.The Regional Court expressly noted the significance of the legal issues raised since there had so far been no decision by the
German Federal Court of Justice (Bundesgerichtshof) on the question of a
conflict between a word mark and a three-dimensional product design.

German media now reports that, following the
appeal proceedings in this dispute, the Higher Regional Court has apparently
disagreed with the Regional Court and does not regard Lindt's chocolate bears
as infringing.The court will release
its decision on 11 April 2014.According
to German newspaper FAZ, both sweet makers are determined to appeal this matter
all the way to the Bundesgerichtshof in order to achieve legal certainty.

This will be an interesting case to watch. May we even see a referral to the CJEU?